H-B, have deprived him of his constitutional rights to due process under color of state law, fails on two grounds. First, as we have already pointed out, the automatic supersedeas provisions of § 413 do not offend due process, consequently plaintiff has not shown a violation of constitutional rights. Second, plaintiff's § 1983 claim falls because these private party defendants have not acted "under color of" state law within the meaning of § 1983.
The "under color of" provision of 42 U.S.C. § 1983 encompasses only such private conduct as is supported by state action. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). A private person does not act under color of state law unless he derives some "aid, comfort, or incentive," either real or apparent, from the state. Id. at 211-212, 90 S. Ct. 1598 (separate Opinion of Mr. Justice Brennan). The support provided by the state must be significant. Moose Lodge v. Irvis, 407 U.S. 163, 173, 176-177, 92 S. Ct. 1965, 32 L. Ed. 2d 627 (1972).
Plaintiff argues that, clothed with the power vested in it by § 413, PMAIC is permitted "to do that which it otherwise would be without power or authority to do, i.e. suspend, reduce, or terminate the amount of compensation payable." [Plaintiff's Reply Brief, p. 4] We disagree. The parties had entered into an agreement for the payment of disability benefits. Absent a statute, the party required by the terms of the agreement to make the payments had the power to stop making those payments whenever it felt they were no longer required under the terms of the agreement, i.e. when disability ended. If the other party disagreed he was free to institute suit to compel resumption of the payments and payment of installments wrongfully withheld. Section 413 did nothing more than spell that process out.
As pointed out above, the Workmen's Compensation scheme is one involving private parties, employers and their employees. The state provides only the administrative vehicle through which Workmen's Compensation claims are processed and resolved. By providing the machinery, the state has not "so far insinuated itself into a position of interdependence with [PMAIC and H-B] that it must be recognized as a joint participant in the challenged activity." Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S. Ct. 856, 862, 6 L. Ed. 2d 45 (1961).
Since the challenged statute does not give the private defendants any power which they did not otherwise possess, and since the state is not so implicated in the operation of § 413 as to be a participant in the practices of the private defendants, the element of "state action" is lacking as to the actions of PMAIC and H-B.
Plaintiff's final argument relates to the practice of pre-petition termination or modification of compensation benefits. It is undisputed that defendant PMAIC has engaged in the practice of terminating or modifying benefits of compensation recipients prior to the filing of a § 413 petition. Plaintiff argues that this practice "is as constitutionally defective, on procedural due process grounds as is Section 413 itself." [Plaintiff's Brief, p. 26]
The deficiency in plaintiff's argument is that he points to no statute or regulation which sanctions the practice of pre-petition termination. Had the offending parties been state officials, the practice would, no doubt, be considered a misuse of statutory power. See, e.g., Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Plaintiff has not demonstrated that state officials were aware of, or had somehow been involved in this practice, consequently his claim, directed toward these purely private defendants, must be rejected. See 27 Puerto Rican Migrant Farm Workers v. Shade Tobacco Growers Agricultural Association, Inc., 352 F. Supp. 986, 993 (D. Conn. 1973). As Moose Lodge v. Irvis, 407 U.S. 163, 176-177, 92 S. Ct. 1965, 1973, 32 L. Ed. 2d 627 (1972), makes clear, "to make the State in any realistic sense a partner or even a joint venturer" the state must foster or encourage the proscribed activity. Plaintiff's failure to present some evidence that pre-petition termination is encouraged or sanctioned by § 413, requires the conclusion that the practice is purely private, not supported in the least by the challenged statute. PMAIC's and H-B's action in terminating or modifying compensation benefits is, therefore, not conduct "under color of" state law, within the meaning of 42 U.S.C. § 1983.
Penalty and Counsel Fee
Two final matters remain for disposition.
Plaintiff urges that we penalize PMAIC and H-B for the pre-petition termination of his benefits. It will be recalled that PMAIC had submitted to Silas a Supplemental Agreement on July 2, 1971, calling for maximum partial disability payments after PMAIC's doctor had found Silas 50% disabled. When Silas refused to sign, PMAIC terminated his payments on July 9, 1971. It didn't file a petition until August 2, 1971. When it did file the petition, in spite of the doctor's report indicating 50% disability, PMAIC submitted that Silas' disability was undetermined, resulting in termination of payments, rather than reduction in the amount. The termination persisted until December 13, 1971, after the filing of this suit.
There is a temptation to accede to plaintiff's request that we penalize PMIC for its actions, for we are satisfied that PMAIC's actions were designed to "punish" Silas for refusing to sign the Supplemental Agreement. As heretofore noted, nothing in § 413 sanctions pre-petition termination of payments, consequently the pre-petition termination should be regarded as a violation of the section. Further, when the petition was filed, PMAIC's failure to acknowledge Silas' partial disability, as disclosed by PMAIC's own doctor's reports, seems to be totally lacking in good faith. The difficulty with granting the requested relief is that we would be making an unwarranted intrusion into a matter of purely state law. Although we have the power to deal with the state law claim under pendent jurisdiction ( United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966)) we are reluctant to do so in the absence of state law precedent as to the proper remedy. Where there are deprivations of civil rights under § 1983, we are free to fashion such relief as would vindicate federal rights (see Basista v. Weir, 340 F.2d 74 (3d Cir. 1965)), but we do not have that same freedom for the vindication of purely state rights. We reluctantly conclude that penalty for violation of the state law is a matter for the legislature. At the time of this occurrence, the Pennsylvania legislature had provided no sanctions for such conduct. Since the filing of this suit, the legislature has provided remedies by amendments effective May 1, 1972, for certain pre-petition terminations.
Plaintiff also seeks an award of counsel fees. Although we commend plaintiff's counsel for the outstanding service they have so competently performed, we believe that an award of counsel fee should reflect the extent to which plaintiff prevailed in the suit. See Schaeffer v. San Diego Yellow Cabs, Inc., 462 F.2d 1002 (9th Cir. 1972). Because we have determined that plaintiff's complaint lacks merit, an award of counsel fee here would be inappropriate.